1. We recall
that Indigenous Nations and Peoples came to the United Nations in 1977, in part
to have our nation-to-nation treaties upheld by UN bodies. We note that some of
those courageous leaders are still with us today and still fully engaged in the
fight to have our treaties upheld. At the time, Indigenous Nations and Peoples
felt that this international forum would be one place to ensure enforcement of
treaties between our Indigenous Nations and other governments such as the
United States and Canada.2. We further
recall the statement of Ms. Navi Pillay, former UN High Commissioner for Human
Rights, speaking at the time in her official position, on the central
importance of treaties on August 7, 2013: "Even when signed or otherwise
agreed more than a century ago, many treaties remain the cornerstone for the
protection of the identity, land and customs of indigenous peoples, determining
the relationship they have with the State." The statement marked the
International Day of the World's Indigenous Peoples on August 9, 2013.13. With that
current and historical context, we take note of the “Study on an optional
protocol to the United Nations Declaration on the Rights of Indigenous Peoples
focusing on a voluntary mechanism” (E/C.19/2014/7)2 which was prepared by Permanent Forum members
Professor Dalee S. Dorough and Professor Megan Davis for the Thirteenth Session
of the UN Permanent Forum on Indigenous Issues (UNPFII) with the Special Theme:
“Principles of Good Governance consistent with the United Nations Declaration
on the Rights of Indigenous Peoples, articles 3 to 6 and 46,” held May 12-23,
2014 at UN Headquarters.4. The
Haudenosaunee intervention on ‘Principles of Good Governance,’ delivered by
Chief Oren Lyons (Onondaga Nation), under Agenda Item 3 at the Thirteenth
Session of the UN Permanent Forum on Indigenous Issues (UNPFII) delivered on
May 14, 2014 in paragraph 21, expressed the concern that a proposed optional
protocol “may allow procedures for states to move disputes regarding lands,
territories and resources from international processes to domestic judicial and
political forums."35. We take note
that the upcoming Fourteenth Session of the UNPFII to take place April 20- May
1, 2015 at UN Headquarters lists as its proposed Agenda Item 5: Half-day
discussion on the expert group meeting on the theme “Dialogue on an optional
protocol to the United Nations Declaration on the Rights of Indigenous People”.
We encourage this to be an open dialogue on the various proposals and drawbacks
for an optional protocol, considering these proposals from all angles, and
including the “full, equal, and effective participation” of Indigenous Peoples.

Full, Equal, and Effective Participation

6. A separate
but related issue under consideration at this Expert Group Meeting is the
proposal to revise EMRIP’s mandate, which emerged from the negotiations of the
HLPM/WCIP Outcome Document. Paragraph 28 of the Outcome Document of the
HLPM/WCIP states: “We invite the Human Rights Council, taking into account the
views of indigenous peoples, to review the mandates of its existing mechanisms,
in particular the Expert Mechanism on the Rights of Indigenous Peoples, during
the sixty-ninth session of the General Assembly, with a view to modifying and improving
the Expert Mechanism so that it can more effectively promote respect and the
enforcement of the Declaration, including by better assisting Member States to
monitor, evaluate and improve the achievement of the ends of the Declaration.”7. We note the
HLPM/WCIP process arose between the annual sessions of the UNPFII. As a result,
the proposed revision of EMRIP has not had the benefit of the full, equal, and
effective participation by Indigenous Peoples. We are concerned that an
essential Indigenous mechanism within the UN system is being revised without
the full participation of Indigenous Peoples. We are concerned that a lack of
full, equal, and effective participation is the new norm within the UN system.8. This lack of
full, equal and effective participation of Indigenous Peoples contradicts the
Modalities Resolution of the HLPM/WCIP and UNDRIP Articles 3, 18, 32, 33, 36,
37, 38 42 43 and 46. The full, equal, and effective participation of Indigenous
Peoples is a clearly established requirement.

Areas of Concern

9. We
acknowledge and appreciate all the papers submitted to this Expert Group
Meeting by each expert and we have carefully reviewed each paper. We share the
view as was laid out in the initial “Study on an optional protocol” and in some
of the subsequent expert papers submitted for this Expert Group Meeting, that
an implementation gap exists for the UNDRIP. We also share the view that there
is a lack of adequate knowledge and understanding of the UNDRIP. Part of AILA’s
work since the adoption of the UNDRIP in 2007 has been to continually educate
on its content and advocate for its implementation on local, continental and
global levels.10. We continue
to be concerned about the desire for UN Member States to ‘domesticate’ our rights,
rather than maintain relations with Indigenous Nations and Peoples in the
international arena, on a nation-to-nation basis, which was the original
purpose of Indigenous Nations and Peoples in coming to the UN. It should be
duly noted that international law supersedes domestic law. We are concerned
about moving disputes regarding our rights to our lands, territories and
resources to an optional protocol, which would rely on governments to do the
right thing and ratify this optional protocol.11. We find a few
proposals, presented in the expert paper submitted by Professor Mattias Åhrén
to the Expert Group Meeting, relating to a possible new role for EMRIP to be
particularly troubling.12. The
suggestion that only Indigenous Peoples recognized by states would be eligible
to submit complaints to a new optional protocol body, is in direct violation of
the UNDRIP, our right to full, effective and equal participation, and violates
the right to self-determination. This is non-negotiable. We have been fighting
against the perception that states decide who is or is not Indigenous for
hundreds of years.13. A six month
time limitation to raise human rights issues in international fora after
exhausting domestic options is damaging and overly burdensome for our Peoples.
We are unclear who determines what rights could be deemed principally
important.14. As we all
know, UNDRIP was the result of an over twenty year negotiation process and sets
the minimum standards for the “survival, dignity and well-being” of Indigenous
Peoples around the world. Article 43 of the UNDRIP states: “The rights
recognized herein constitute the minimum standards for the survival, dignity
and well-being of indigenous peoples of the world.” It has been established
that the UNDRIP, along with the UN Charter, the human rights covenants and
other applicable international human rights laws must be the basis for
discussing the self-determination of Indigenous Peoples. UNDRIP has a strong
norm setting role in international law, and member states cannot pick and
choose when and which Articles they comply with of UNDRIP. Additionally, for
Indigenous Nations and Peoples, our treaties, agreements and other constructive
arrangements are the basis for the protection of our lands, territories and resources.15. This proposed
new role for EMRIP could lead to a claim of a ‘duplication of work within the
UN system.’ We were happy to see that the original “Study on an optional
protocol” stressed that “a voluntary mechanism cannot serve as a way for States
to avoid being monitored by existing international or regional human rights
bodies and mechanisms” (paragraph 40).16. The work of
the UNPFII is of paramount importance within the UN system. The American Indian
Law Alliance, and the Nations and communities we serve, have always supported
and continue to support the work of the UN Permanent Forum on Indigenous
Issues. Our Founder and President, Tonya Gonnella Frichner, Esq. (Onondaga
Nation), served as the North American Regional Representative to the UNPFII for
a three year term from 2008-2011, brought forward by Indigenous Peoples. As a
result of that role, she has direct experience and participated first-hand in
the indispensable work of the Forum.17. Indigenous
Peoples have a voice and we must be recognized as our own experts in any forum
concerning us.Recommendations:1. We cannot
allow procedures that will allow for states to move disputes regarding our
rights to our lands, territories and resources from international processes to
domestic judicial and political forums.2. In line with
established international law, the UNDRIP, the UN Charter, and all other
applicable international law must be the framework for the realization of the
self-determination of Indigenous Peoples, including Article 37 of the UNDRIP:

1. Indigenous
peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States
or their successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.

2. Nothing in
this Declaration may be interpreted as diminishing or eliminating the rights of
indigenous peoples contained in treaties, agreements and other constructive
arrangements.

3. All
deliberations concerning a proposed optional protocol for the UNDRIP, including
any proposed overhaul of the mandate of EMRIP must include the full, effective,
equal participation of all Indigenous Peoples in line with the UNDRIP.

4. The United
Nations Declaration on the Rights of Indigenous Peoples, which is an integral,
international human rights instrument that recognizes the individual and
collective rights of Indigenous Peoples, including the right of
self-determination, must be continually implemented on all levels. Further
education on the content of UNDRIP is needed for Indigenous Nations and
Peoples, UN member states, UN agencies, civil society, governments at all
levels and society at large. Adequate financial resources must be made
available to further these goals.

Monday, February 2, 2015

Good
greetings. Relevant to the call for a
study into cross-border issues by the UN Permanent Forum on Indigenous Issues
during its 13th session (2014) which you are conducting, may we submit the
following for your consideration.

It is fundamental to extract intellectually and independently assessthe
parameters of evaluation under which the UNPFII shall realize the study into
cross-border issues with full acknowledgement of the dual mandates under which
the UNPFII has been called to recognize as consequence of the principle
"Equal to all other peoples" established by the UN Declaration on the
Rights of Indigenous Peoples since 2007.

This principle and clarification is necessary
and called for by the new paradigm in international relations mandated by the
UNDRIP, and the redefinition for standards of international diplomacy in
relation to Indigenous Peoples that the Permanent Forum must exemplify and
implement as lead programme for the UN system.

In
terms of cross-border issues impacting the Human Rights and Territorial Rights
of Indigenous Peoples affected by the international border between the US and
Mexico established by the Treaty of Guadalupe Hidalgo (1848) and subsequent
political and commercial agreements, we reference our submission to the UNPFII
Tenth Session (2011)

We
call on the UNPFII to engage in partnership with Indigenous Peoples and the
International Labor Organization (ILO) to conduct a study and submit a report
to the UNPFII at its 11th session in 2012 on the implications and relevancy of
the Preliminary Study on the impact of the Doctrine of Discovery as relates to
the international obligations and processes codified in ILO Convention C169
with respect for the Human Rights and Fundamental Freedoms of Indigenous
Peoples. In terms of processes of accountability for violations of these
rights, perpetrated systematically by the imposition of international borders
of government states on the territories of our Indigenous Nations, we recommend
that specific focus for the study should be evaluation of the impact from local
to regional, regional to continental, continental to global scales of ecology
of the Natural World and our shared responsibilities as defenders of the Human
Rights of the Future Generations and the Rights of Mother Earth.